Citation Nr: 0912633
Decision Date: 04/03/09 Archive Date: 04/10/09
DOCKET NO. 04-33 491 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for left knee instability.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
James R. Siegel, Counsel
INTRODUCTION
The Veteran served on active duty from August 1993 to May
1996, and he had active duty service in the Army National
Guard from March to September 2003.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from an April 2004 rating decision of the Regional
Office (RO) that denied the Veteran's claim for service
connection for left knee instability. This case was
previously before the Board in January 2006, at which time it
was remanded for additional development of the record.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
As noted in the January 2006 remand, the Veteran asserted at
the hearing before the undersigned in June 2005, that he
injured his left knee during his period of service from
August 1993 to May 1996. In the remand, the Board requested
that the RO attempt to obtain the service treatment records
from the Veteran's active duty service, as well as his
service with the National Guard. Following a request for
information from the VA, a representative of the Georgia Army
National Guard indicated all avenues to locate the Veteran's
service record among those personnel discharged from that
organization in 2003 had been exhausted.
With regard to active duty service treatment records, the
Board notes that a screen shot noted a request warning that
"BIRLS shows that the [service treatment records] are
already in VA possession. No request can be submitted under
the 'M' request series." However, the only service
treatment records in VA possession were submitted by the
Veteran, not received from the service department. Some of
the copies are of poor quality, and it is unclear whether the
records submitted represent his entire active duty service
treatment record folder.
The Board is obligated by law to ensure that the RO complies
with its directives, as well as those of the United States
Court of Veterans Appeals (Court). The Court has stated that
compliance by the Board or the RO is neither optional nor
discretionary. Where the remand orders of the Board or the
Court are not complied with, the Board errs as a matter of
law when it fails to ensure compliance. Stegall v. West, 11
Vet. App. 268 (1998).
Ask the Veteran to provide the names, dates, and addresses
for all private treatment providers who have treated the
Veteran for his left knee prior to, during, and following
service, to include his surgeries. After securing the
necessary release, these records should be requested.
Finally, during the pendency of this appeal, the United
States Court of Appeals for Veterans Claims (Court) issued a
decision in the consolidated appeal of Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA
notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. §
3.159(b) apply to all five elements of a service connection
claim, including the degree of disability and the effective
date of an award. In the present appeal, the appellant was
provided with notice of what type of information and evidence
was needed to substantiate his claim for service connection,
but he was not provided with notice of the type of evidence
necessary to establish a disability rating or effective date
for the disability on appeal. Thus, on remand the RO/AMC
should provide corrective notice.
Under the circumstances of this case, the Board finds that
additional development of the record is required.
Accordingly, the case is REMANDED to the RO/AMC for action as
follows:
1. Please send the veteran a corrective
VCAA notice under 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b), that advises
the veteran that a disability rating and
effective date will be assigned if
service connection is awarded, to include
an explanation as to the information or
evidence needed to establish a disability
rating and effective date for the claims
on appeal, as outlined by the Court in
Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. Ask the Veteran to provide the names,
dates, and addresses of all medical care
providers who treated him for a left knee
condition prior to, during, and following
service, to include surgical procedures.
After securing the necessary release, the
RO/AMC should obtain these records.
3. The RO/AMC should contact the National
Personnel Records Center and request the
Veteran's service treatment records from
his period of active duty from August
1993 to May 1996.
4. If evidence is received showing
treatment in service for left knee pain,
the RO/AMC should undertake any necessary
development to include, if appropriate,
scheduling a VA examination to determine
the nature of the Veteran's left knee
disability and provide an opinion as to
its possible relationship to service, to
include whether a preexisting left knee
condition was aggravated (permanently
worsened beyond normal progress) by his
active military service.
5. Following completion of the above,
the RO/AMC should review the evidence and
determine whether the appellant's claims
may be granted. If the claims remain
denied, the appellant and his
representative should be furnished an
appropriate supplemental statement of the
case and be provided an opportunity to
respond. The case should then be
returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).